'I was astonished by this line of questioning.' More reaction to POM v Coke at the Supreme Court

Attorney: Kathleen Sullivan [for Coke] did a terrific job but she faced a court that was far more focused on its visceral reaction to the product name than her arguments

The questions posed by Supreme Court Justices during oral arguments in a false advertising case brought by POM Wonderful against Coca Cola were nothing short of “astonishing”, according to one food law attorney that has been closely following the case.

Speaking to FoodNavigator-USA after Coke’s grilling at the Court
on Monday, Dale Giali, partner in the LA office of law firm Mayer Brown, said: “The chief justice of the United States [Justice Roberts] seemed to indicate that the Food and Drug Administration (FDA) only has jurisdiction over health and safety, and not consumer protection.

“But the FDA’s authority to regulate labels for consumer protectionis well-recognized by the food industry and the lawyers that counsel the industry; it is right there in the Food, Drug & Cosmetic Act (FDCA)! No one, as far as I know, has ever questioned the jurisdiction or authority of the FDA to regulate labeling for the specific purpose of consumer protection. So I was astonished by this line of questioning.”

Chief Justice Roberts seemed to be confused as to the FDA’s remit

Ivan Wasserman, partner at Manatt Phelps & Phillips in Washington DC, also observed that Chief Justice Roberts seemed to be “misinformed” as to the FDA’s legal remit, and was surprised to hear him ask whether the FDA addresses issues of consumer and commercial confusion when it issues labeling regulations.

And when he was told that the FDA did indeed look beyond “health and wellbeing concerns”, Chief Justice Roberts then asked: “What does the FDA know about that? I mean, I would understand if it was the FTC or something like that, but I don't know that the FDA has any expertise in terms of consumer confusion apart from any health issues.”

This too, was “just astonishing”, said Giali.

‘Just astonishing’

Another bizarre aspect to Monday's proceedings, said Giali, was that the court seemed to be arguing that if Coke's labels are consistent with FDA regulations, “then the FDA did not do a good job of drafting its regulations in the first place”.

Dale Giali: I was astonished by this line of questioning

But Coke didn’t argue that every single aspect of a food label should be immune from a Lanham Act false advertising claim, he said, merely that this specific case - a juice name specifically authorized by federal legislation governing juice naming and labeling - is not actionable.

The regulations governing the labeling of juices are incredibly complex and detailed, and firms such as Coca-Cola invest a lot of time and focus ensuring they are compliant, precisely because they want to avoid legal challenges like this, said Giali.

The court was far more focused on their visceral reaction to the product name than her arguments

He added: “I don’t want to put words in Coke’s mouth, but I am sure that even Coke would agree that there are aspects of a label not subject to specific regulations that could be actionable under the Lanham Act,” said Giali.

“But not the name of a juice, the rules for which are specifically outlined in the FDCA. They are not ambiguous or subjective, and Coke followed them. When the FDA came up with these rules, they had to reconcile multiple competing demands, but where size is limited, such as on a product label, you can’t always list all the juices in the name of the product for example.”

In this case, he added, Pomegranate Blueberry is the characterizing flavor of the product, and it is consistent with the law to label it as such.

Ivan Wasserman: Chief Justice Roberts appeared to be misinformed about the FDA's remit

“Consumers are interested in knowing what the ‘taste’ of a product will be before purchasing it, as well as the ingredients of a product, and the ingredients are already disclosed in the product’s mandated ingredient list."

He added: “I think Kathleen Sullivan [who was representing Coke at the Supreme Court] did a terrific job but she faced a court that was far more focused on its visceral reaction to the product name than her arguments, and once the court was focused on the negative reaction to the name, the legal issues just lost out.

“To hear a Supreme Court Justice say in open court that Coca-Cola “cheated” consumers with its label was also pretty astonishing to me [Justice Kennedy asked if Coke believed that 'national uniformity consists in labels that cheat the consumers like this one did?']."

Everybody can agree that Monday was not a good day for Coke

Coke says its label clearly states that the juice is a blend of five fruits, while the picture on the front of the pack shows apples, grapes and raspberries as well as pomegranates and blueberries

But he added: “Despite all this - and I think everybody can agree that Monday was not a good day for Coke - it’s dangerous to pre-judge what the Supreme Court will decide, and the more detailed legal arguments are contained in the briefs, which the justices will consider as well, so we’ll just have to see what happens.”

Click HERE
to read more about the case, a false advertising suit filed by POM under the Lanham Act accusing Coke of “willfully misleading consumers” by marketing a juice comprised almost entirely of apple & grape juice as ‘Pomegranate Blueberry… Flavored Blend of 5 Juices'.

Click HERE
to read the transcript of the oral arguments at the Supreme Court on April 21.

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The questions posed by Supreme Court Justices during oral arguments in a false advertising case brought by POM Wonderful against Coca Cola were nothing short of “astonishing”, according to one food law attorney that has been closely following the case.